Legal Authorities in the Long War

About the Author

What legal structures can keep America safe against terrorist
attacks? On one hand, this is a very timely issue, as we are
currently in the midst of a heated debate about the appropriate
means for defending our country against international terrorists.
On the other hand, this is a timeless issue, one that we will
continue to confront as we go through what will likely be a very
long-term conflict with the forces of international terrorism.

In order to understand the state of our legal structures and how
we got to this juncture, we need to go back to 9/11 and to the
fundamental course correction that that day brought about. In the
aftermath of the 9/11 attacks, we saw a dizzying array of changes
to our national counterterrorism program. These changes were the
result of several things.

First, they were a direct result of that day's death and
destruction, which demonstrated in brutal relief just how
vulnerable we really were to attack by a determined adversary.

Second, they grew out of the recognition that we were now
dealing with a different adversary than we had faced in the past.
These terrorists did not constitute a formal army with the
trappings of an organized state military, the type of entity for
which the rules of war were designed. Nor did they pose the type of
threat that is readily addressed by the criminal justice system--a
system that focuses on judging and punishing wrongdoers for
completed crimes and not on preventing crimes from occurring in the
first place, which of course is the preventive mission of
counterterrorism.

In short, these terrorists posed a threat that was somewhere
between the war paradigm and the criminal paradigm--a threat that
caused us to question our preconceived notions of how justice
should be administered in the context of international
terrorism.

Finally, the post-9/11 reforms grew out of a recognition
that our counterterrorism apparatus was ill equipped to meet
today's threat from al-Qaeda-like terrorist organizations. We awoke
the morning of 9/11 with a counterterrorism apparatus that was
limited in size, scope, and authority; that lacked sufficient
coordination among its key players; and that was designed in large
part to be reactive rather than proactive and preventive.

This was not the fault of any one agency or any one
Administration. To the contrary, the reality is that, until 9/11,
there simply was not sufficient public and political will to force
the difficult and fundamental changes that were necessary to build
an effective terrorism-prevention capacity. It was only after the
clarion call of 9/11 that the national will existed to
fundamentally reorient the government's efforts toward terrorism
prevention.

For all these reasons, the need for prompt legislative and
executive action was manifest in the aftermath of the attacks, and
we launched into an all-out effort to build our counterterrorism
defenses. Reforms and initiatives were pursued at a furious rate,
and significant pieces of legislation like the Patriot Act were
signed into law in relatively short order.

A Sea Change in Counterterrorism

After a couple of years, once the immediate threat had subsided
and we got through the frenetic building stage, we as a nation were
then able to step back, take a hard look at all the new structural,
legal, and operational innovations, and evaluate them with calm
reflection.

In fact, we have been going through that evaluation process for
some time now, at least as far back as the debate in 2005 and early
2006 leading up to the Patriot Act reauthorization--a debate that
questioned whether the hastily passed authorities in the original
Patriot Act had been drafted with sufficient safeguards and
implemented with due respect for privacy and civil liberties. That
debate has morphed and been carried on through various iterations
over the past few years.

In the past weeks, we have seen the most recent version of this
debate on the national stage. This debate has been healthy in some
ways, but I think it has had an unfortunate side-effect in that it
has created a misimpression in the minds of some that the whole
regime of counterterrorism prevention that was built after 9/11 is
being called into question.

But, as you know, that is not the case. While a few policies
have generated white-hot controversy, these policies constitute
only a limited subset of the counterterrorism initiatives and
reforms that have been instituted since 9/11, initiatives and
reforms that include:

Structural reorganizations, such as the stand-up of the
Department of Homeland Security, the Office of the Director of
National Intelligence, and the National Counterterrorism
Center.

The lowering of the legal wall that had separated our law
enforcement and intelligence communities and badly handicapped our
counterterrorism efforts before the Patriot Act.

The development of new statutory and regulatory authorities,
including the FISA Amendments Act, the Patriot Act and its
reauthorization, and the recent rewrites of the Attorney General's
guidelines for national security investigations and Executive Order
12333, which lays out authorities and limitations for our
intelligence agencies.

Fundamental reforms to agencies like the FBI, which has
overhauled and reoriented its operations in an effort to take its
historical facility for investigating completed crimes and apply it
to the detection and prevention of terrorist threats.

This is just a sampling of the comprehensive reforms that have
taken hold over the past eight years, and together they represent a
sea change in the manner with which we pursue our counterterrorism
mission.

What Must We Do Now?

The real debate today should be whether the executive and
legislative branches will now undertake to solidify and
institutionalize the counterterrorism policies that make up that
sea change. This is the challenge of the day, and it is a challenge
that I am optimistic will be met under this Administration.

I am optimistic because I see a marked continuity between
Administrations in relation to the vast majority of the policies
and programs that have been implemented since 9/11. While there
certainly are a few areas of serious disagreement, there are many
more areas of agreement. When you think about it, that is really
not that surprising:

Given the fact that the majority of these policies are simply
not controversial in the eyes of most Americans;

Given the fact, which has been remarked upon in the press
recently, that there really is not that much daylight between the
national security perspective of this Administration and that which
held sway in the last years of the Bush Administration;

Given the fact that we had a smooth presidential transition
process that allowed for a meaningful sharing and mutual
understanding about the origins and purposes of our national
security policies; and

Given the fact that there historically have not been, and there
should not be, wild swings in national security policies between
Administrations. There is a need for policy stability--and,
importantly, the perception of policy stability-- especially
when dealing in the international realm, and I believe that this
Administration, like those in the past, is demonstrating an
appreciation for that concern.

So, given that we have a level of continuity in the executive
branch on most issues, what should happen at this point to
institutionalize and solidify our nation's counterterrorism
program?

In short, we need to identify those issues that are still not
resolved, and then Congress needs to step up and take ownership of
them. If we want to confer complete and lasting legitimacy on our
counterterrorism policies, we need to bring the current debate into
the legislative realm and hash it out in the context of concrete
proposals and legislative line-drawing.

I have been involved in two of those exercises over the past
four years: the debate over the renewal of the Patriot Act and the
extended deliberations over the amendment of the Foreign
Intelligence Surveillance Act which resulted in the FISA Amendments
Act of 2008. Though both were long and drawn out--and I felt like I
was virtually living on Capitol Hill with all the hearings and
briefings about the FISA legislation--they represented the
democratic process at work with some of the most difficult issues
of our time. Strong views were held and expressed, Members worked
hard to develop a keen understanding of the relevant areas of law
and operations, and virtually every facet of those two pieces of
legislation was subject to rigorous scrutiny and debate. The result
was strong legislation that provided the government the tools it
needed along with sufficient safeguards to ensure that they would
be used responsibly.

The upshot of this process was to put to rest the controversy
that had previously swirled around each of those areas of law. The
Patriot Act, which had been publicly demonized by many, became
pretty much a non-issue with the passage of the Patriot Act
reauthorization; and the issue of wiretapping overseas persons
without a specific warrant, which had prompted the creation of the
Terrorist Surveillance Program and triggered the ensuing
controversy, was largely mooted by the FISA Amendments Act that
laid out a workable framework for those operations and passed
Congress with a broad bipartisan consensus.

The Challenge Before Us

I would like to see Congress undertake the same process with the
issues we are currently facing.

First, Congress needs to address the detention issue.
Just as Congress calmed the waters in the Patriot Act and
electronic surveillance areas, Congress needs to work with the
President to craft an enduring legal structure for detaining
terrorist suspects in the asymmetrical conflict against
international terrorism.

Second, Congress should act promptly to make permanent
the three counterterrorism authorities that are scheduled to sunset
this year. Those are:

The authority to get roving wiretap authority in national
security cases so that investigators can maintain electronic
surveillance on a suspect as he switches between different phones
or e-mails;

The ability to get FISA surveillance authority against a
foreign terrorist, even though he cannot be linked directly to a
particular foreign power (the Lone Wolf Provision); and

The business records provision of FISA that allows the
government to procure a court order to obtain documents in a
national security investigation.

These have all proven to be invaluable tools in our
counterterrorism efforts. They are subject to careful oversight,
and they should be made permanent.

Third, Congress needs to be involved in the decision on
how to prosecute the detainees who are currently housed in
Guantanamo as well as the detainees we will inevitably bring into
custody as we continue to confront and capture terrorist suspects
around the world.

One option is to establish a separate national security court
that is designed to handle such cases with special rules that
account for the specific challenges that arise from prosecuting
cases that derive from intelligence and military operations--issues
such as those relating to the protection of classified information
and the application of the hearsay rule requirements to evidence
collected in the field.

Another option is to bring those cases into the Article III
courts, in which case Congress must consider whether and how our
current rules and procedures could be adapted to meet the needs of
these cases--for example, whether the Classified Information
Procedures Act should be amended to provide greater protections for
the highly sensitive information that is often implicated by these
cases. These are tough issues, but there is no better time to
address them than now, when both of the political branches are
looking for a means of prosecuting these cases (or some number of
them) in our criminal courts.

Meeting the Challenge

These are just some of the areas where the government needs new
authorities and a legislative framework for prosecuting its
counterterrorism efforts. Other needs are sure to arise as the
terrorist threat morphs, as our adversaries adapt to our security
measures, as technological change opens new opportunities for our
enemies, and as intelligence tells us more about our potential
vulnerabilities.

I would urge the new Administration to be forward-leaning in
seeking new authorities to meet our operational needs. We have seen
the consequences of waiting too long to seek the authorities that
our operators need. We waited too long to dismantle the wall that
handicapped coordination between our intelligence and law
enforcement personnel, and we did not do so until after that
handicap was laid bare in the unsuccessful effort to find the 9/11
hijackers in the days leading up to the attacks.

We also waited too long to address the problems that
technological change caused in our FISA operations. Those problems
were plaguing our operations before 9/11, and it was not until 2007
that we presented proposed legislation and not until the summer of
2008 before we got a final legislative fix.

If and when they identify operational needs, the new
Administration should not wait and Congress should not balk at
considering how to meet those needs. If the Administration can make
the case that we need a particular authority and that it can be
implemented in accordance with law and the Constitution, the
question before Congress should not be whether to provide
the authority but how to provide it with sufficient
limitations and oversight to ensure its responsible use.

The executive branch learned in the course of the Patriot Act
reauthorization and the FISA debate that we could live with
oversight. In fact, the passage of the FISA Amendments Act was due
in no small part to the executive branch's willingness to accept
substantial congressional and judicial oversight in our FISA
operations. Though sometimes cumbersome and often frustrating for
the officials who are subject to it, that oversight--and the
comfort it gives to Congress and the American people--is often what
makes the difference between passage and non-passage of national
security legislation and is therefore often a relatively small
price to pay for an effective counterterrorism authority.

Conclusion

So those are my wishes for the near future of counterterrorism
law and policy:

That we acknowledge the broad areas of consensus about our
counterterrorism programs;

That we develop possible solutions for those issues that remain
unresolved; and

That Congress takes them on and addresses them with a sound,
deliberate legislative process.

If we do that, my hope and expectation is that the issues that
seem so divisive today will go the way of the Patriot Act debate
and the furor over warrantless surveillance and become the
hot-button issues of the past.

Kenneth L. Wainstein has served as
Homeland Security Adviser and Assistant to the President for
Homeland Security and Counterterrorism, and before that as the
first Assistant Attorney General for National Security in the U.S.
Department of Justice. These remarks were delivered at a May 28,
2009, conference on "Counterterrorism and the Obama Administration"
sponsored by The Heritage Foundation and the Federalist
Society.